COMMONWEALTH v. HADDOCK

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Complaint received
and sworn to in the Ware Division of the District Court
Department on May 8, 1997.

The case was heard by Peter
J. Rutherford, J.

Jon R. Maddox for
the defendant.

Cynthia M. Pepyne,
Assistant District Attorney, for the Commonwealth.

GREENBERG, J.

Colleen Haddock, the
defendant, concedes that when two men came to repossess her
bedroom set and telephone on March 7, 1997, she whacked one of
them with a wrought iron poker. The question she raises on appeal
is whether the evidence was sufficient to satisfy a rational
trier of fact beyond a reasonable doubt that she did not act in
reasonable self-defense of herself or her property. See Commonwealth
v. Johnson, 426 Mass. 617, 620 (1998).

At a bench trial in the
District Court on a charge of assault and battery with a
dangerous weapon, the defendant timely moved for a required
finding of not guilty. Mass. R. Crim. P. 25(a), 378 Mass. 896
(1979). She neglected to move again for a required finding at the
close of all of the evidence. We nevertheless address her claim
because a verdict based on legally insufficient evidence is
"inherently serious enough to create a substantial risk of a
miscarriage of justice." See Commonwealth v. McGovern,
397 Mass. 863, 867-868 (1986); Commonwealth v. Johnson,
426 Mass. 617, 620-621 (1998).

We briefly recite the
pertinent facts, presenting them, as we must, in the light most
favorable to the Commonwealth. See Commonwealth v. Hilton,
398 Mass. 63, 64-65 (1986). The defendant’s delinquent account
drew the attention of Keith Danderante, Jr., an account manager
at Rent-A-Vision, a leasing company located in Ware. Furniture,
appliances, and electronic equipment are the company’s staples.
On March 6, 1997, he was dispatched to repossess merchandise for
which the defendant’s payments had lapsed. On that occasion there
was no trouble and some items were taken back without incident.

On the following day,
March 7, Danderante returned to the defendant’s residence with a
coworker, Jeff LaFleur, to complete the task of repossession.
They drove a company van which had a Rent-A-Vision logo painted
on it. In the defendant’s driveway they met the defendant’s
teenage daughter and asked whether her mother was at home. She
went inside saying, "Hold on, I’ll be right back. I’m going
to get my mother." The two men found their way into the home
and waited inside the front room of the house. After a brief
delay, the defendant appeared.

Argument about their
visit, no doubt aggravated by a demand that the defendant pay the
arrears or lose the household goods, burst into violence. The
defendant asked them to leave. When they hesitated, the defendant
repeated her request in no uncertain terms. The defendant began
shouting and grabbed an instrument, described by Danderante as a
"fire poker." A startled LaFleur started to leave but
within seconds the defendant struck him on the right thigh. He
fended off a second blow aimed at his head. At this point,
necessity and company policy required retreat. Both of them fled
to a nearby convenience store to call the police for
pacification. There was evidence that LaFleur went to the
hospital and was treated for contusions to the leg and forearm.

For her part, the
defendant largely confirmed the Commonwealth’s version of the
facts — with one key exception. She testified that after she had
asked the men to leave, LaFleur became abusive, shoving her as
she attempted to prevent him from moving further inside her
house. The defendant stated that LaFleur’s manner and actions had
put her in fear for her safety, and that she had attacked LaFleur
with the fireplace tool in self-defense and in defense of her
property. Other pertinent facts are incorporated into our
analysis as necessary.

As we have stated, at
trial the defendant relied on the affirmative defenses of
self-defense and defense of property. Contrast Commonwealth
v. Hakkila, 42 Mass. App. Ct. 129, 130 (1997). Where there
is credible evidence to raise these defenses, the burden is on
the Commonwealth to prove beyond a reasonable doubt that the
defendant acted with force that was excessive in kind or degree.
See Commonwealth v. Donahue, 148 Mass. 529, 531,
532 (1889); Commonwealth v. Stokes, 374 Mass. 583,
591-593 (1978); Commonwealth v. Fluker, 377 Mass.
123, 127 (1979). See also Commonwealth v. Reed, 427
Mass. 100, 102 (1998). The defendant argues that both defenses
were fairly raised when she introduced her own version of the
events in evidence and that the government’s case was legally
insufficient to prove that her conduct was not excused under
either defense.

In determining whether a
defendant’s otherwise unlawful use of nondeadly force may be
justified as a valid exercise of self-defense, the fact finder
must consider whether (1) the defendant has a reasonable concern
for her safety, (2) the defendant pursued all possible
alternatives to combat, and (3) the force used was no greater
than required in the circumstances. See Commonwealth v. Bastarache,
382 Mass. 86, 104-105 (1980); Commonwealth v. Pike,
428 Mass. 393, 395 (1998); Commonwealth v. Pichardo,
45 Mass. App. Ct. 296, 301-302 (1998). Where deadly force [1]is
involved — it becomes a question for the fact finder whether the
defendant’s use of the fireplace tool constituted deadly or
nondeadly force, see Commonwealth v. Cataldo, 423
Mass. 318, 322-323 (1996); cf. Commonwealth v. Appleby,
380 Mass. 296, 304 (1980) — the second two prongs of the test
are the same, but a defendant must show that she had a reasonable
fear that she was "in imminent danger of death or serious
bodily harm, and that no other means will suffice to prevent such
harm." Commonwealth v. Cataldo, supra
at 321. As for defense of property (at least in the sense
intended here of ejecting trespassers),[2] the relevant inquiry is
whether (1) the defendant used only nondeadly force, and (2) the
force used was "appropriate in kind and suitable in degree,
to accomplish the purpose." Commonwealth v. Goodwin,
57 Mass. 154, 158 (1849). See Commonwealth v. Hakkila,
42 Mass. App. Ct. 129, 130 (1997).

In applying these
standards for the justification of self- defense and, in turn,
use of force, no mandatory presumption arises from the fact that
a defendant has met her threshold burden. See Commonwealth
v. Fluker, 377 Mass. at 127. Meeting the initial burden
merely provides a permissible basis for an inference that the
defense in question applies, and the judge is required to so
charge the jury. The fact finder, however, ultimately remains
free to disbelieve (or credit) any evidence offered by either
party relating to the availability of such defenses in a
particular case. [3]

Here, there was
conflicting testimony as to whether LaFleur used force against
the defendant or threatened her in any manner. Likewise, there
was evidence that the defendant continued to strike at LaFleur
even after he had begun to retreat. Finally, even assuming that
the defendant was entitled to use force, it was an open question
whether her decision to employ a wrought iron fireplace tool
constituted, in the circumstances, the minimum necessary force to
accomplish her purpose or whether her use of that weapon
constituted deadly or nondeadly force.

As we review the evidence
brought out at trial, the judge may have found that the
defendant’s actual belief that the situation required the use of
deadly force was simply not objectively warranted. [4]Even if
plausible, one must pause to ask whether the amount of force used
was excessive. The right to use deadly force, such as swinging a
fireplace poker at someone’s head, arises at a somewhat higher
level of danger than the right to use one’s fists, in
self-defense. Compare Commonwealth v. Baseler, 419
Mass. 500, 502 (1995), and cases cited. Finally, with respect to
defense of property, the judge may have concluded that the use of
deadly force was a miscalculation on the defendant’s part. A
person may use no more force than reasonably necessary to remove
a trespasser.

As stated in Commonwealth
v. Fluker, 377 Mass. at 128, "[t]here is no
constitutional principle which bars the conviction of a defendant
when there is evidence warranting [guilt] and also evidence
warranting, but not requiring, a finding that the defendant acted
in self-defense." In view of the existence of the various
competing permissible inferences here, the judge properly denied
the defendant’s motion for a required finding of not guilty.

[2]The concept of defense of
property has been little explicated in the Commonwealth’s case
law. It relates to the right to use limited force to defend
personal property from theft or destruction and real property
from unwelcome invasion. In Commonwealth v. Donahue,
148 Mass. 529, 531 (1889), the court held that "a man may
defend or regain his momentarily interrupted possession by the
use of reasonable force, short of wounding or the employment of a
dangerous weapon."

[3]Nothing in what we have
said here conflicts with our recent opinion in Commonwealth
v. Keita, 45 Mass. App. Ct. 550, 554-556 (1998). In that
case, we did nothing to alter the Commonwealth’s burden of proof
where an affirmative defense is raised. In Keita, we
simply held that the Commonwealth had failed to adduce sufficient
evidence on all of the elements of the crime charged — including
proof of sanity — to meet the traditional requirements of Commonwealth
v. Latimore, 378 Mass. 671, 677 (1979).

[4]With respect to the issue
of self-defense, the defendant arguably relied at trial on
evidence of so-called "battered women’s syndrome," as
that term is used in connection with G. L. c. 233, Sect. 23F.
Despite suggestions to the contrary in the defendant’s appellate
brief, the fact that the defendant may have been the victim of
domestic abuse in the past does not provide a blanket
justification for her to use force in resolving disputes. To the
extent that such evidence was relevant at all to the issue of
self-defense here, it was but one of many factors for the fact
finder to consider in determining the reasonableness of the
defendant’s conduct.

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